A small win for polluters [Editorial]

Two years ago, the General Assembly passed a law requiring Maryland's 10 largest jurisdictions to begin imposing a stormwater fee to cover the costs of reducing pollution that results when rain sweeps dog droppings, pesticides, motor oil and other harmful muck into streams and rivers. Worsened by the rising amount of impervious surfaces (driveways, parking lots, rooftops and so on) in the region, such runoff is a major source of pollution into the Chesapeake Bay, and the fee's adoption was hailed as part of a banner year for the environmental movement.

Last week, the same lawmakers caved, sticking into the state's $39 billion budget an exemption for two counties, Carroll and Frederick, that allows them to use a portion of county property taxes to pay for stormwater control projects instead. The exemption was not vetted in a public hearing, nor even proposed as a piece of legislation, but added as so-called "budget language" out of the blue by a handful of lawmakers during conference committee negotiations.

It could have been worse, of course. The group considered offering that exemption to all 10 jurisdictions. And, in theory at least, it's entirely possible that Carroll and Frederick will meet their obligations to keep their local waterways clean and simply raise local property taxes, as necessary, to cover the cost in good faith. At least they are still required to do so under the two-year-old law.

But surely the only people who believe that rosy scenario are those who lobbied for the exemption — if even they buy it. From Day One, the leaders of these two counties have objected not only to the fee they disparage as the "rain tax" but to spending the money to reduce pollution that runs off the land after a rainstorm. Restoring the Chesapeake Bay is simply not as high a priority the further one travels west along the Interstate 70 corridor.

The end result is that it's now up to the Maryland Department of the Environment, and perhaps the U.S. Environmental Protection Agency, to make sure these counties are reducing stormwater-related pollution as required by law. That could prove to be a heavy burden, particularly considering how quickly the state has softened its view of the fee. Just last month, MDE ruled that Carroll County could tap its property taxes instead of imposing a distinct fee.

One has to wonder if private property owners in Carroll and Frederick counties were paying attention because they are the first ones who will get hurt by this decision. The point of the must-disparaged rain tax was to collect money from polluters — generally, those with more impervious surface — but now it will be based on property value. That means the owner of a large tract of forested land (probably the least polluting use possible) will be paying while the owner who has virtually paved over a smaller lot (the worst circumstance) may pay a pittance. Indeed, non-profit organizations will likely go scot-free since they generally don't pay property taxes at all.

Critics have pointed out that the stormwater fee means billing churches and private schools, for example, but other jurisdictions have gotten around that by either reducing the fee for such non-profits to a $1 or putting in loopholes to reduce the fee to a pittance by educating the congregation on water pollution or building rainwater gardens or the like. The fee structure may get complicated, but at least it goes after polluters, something a blanket increase in property taxes does not.

Frederick and Carroll residents should also be concerned about what might get shortchanged in those counties should they refuse to raise property taxes. It could be that the counties will end up complying with federal Clean Water Act standards for reducing polluted runoff on the backs of the public schools, law enforcement or other important services. A single-purpose fee would have spared them that scenario.

Make no mistake, it's difficult to see many winners in this decision, even political winners. Democrats will still be attacked by Republicans in this year's state elections for passing a rain tax and refusing the 17 or so bills offered to repeal it. The O'Malley administration now faces a tougher job of enforcing the law, and even the business community in Carroll and Frederick counties ought to be concerned that if those jurisdictions refuse to comply, MDE may eventually have to crack down on other sources of pollution with a moratorium on new construction or worse. That makes the stormwater "compromise" nothing but a mistake for all involved.